Infringement of the fundamental rights by the german gun law
- The protection scope
- Interference with the protected scope
- Constitutional justification for the intervention (= barrier)
Limits of limits
- Formal constitutionality of the restrictive law. Competence, procedure, form
- Material constitutionality of the restrictive law
The following document examines the fundamental rights violation by the german gun law. It distinguishes between three cases that take place at different points in the examination scheme but in any case fail in favor of the applicant.
Security is a human right, derived from human dignity and the European or general human rights convention.
Security is a legal right, but not derived from human dignity and human rights.
The decision of 27.02.2019 on the plaintiff's injunction concerns the constitutionally protected security interest of the population.
The requirements standardized in the Arms Act are indispensable and serve, in particular, to ensure the constitutionally protected security interests of the population to which the applicant himself refers in another, legally incorrect context
Questions to the court
- In which article of the constitution is public safety and order defined and protected as interest of the population?
- What is an interest and is it a legal protected right?
- What is a concern and is it a legal protected right?
- What is the difference between legal protected rights, interests and concerns?
Security is not a legal right itself, but the protection of central legal rights such as the right to life.
The wording of the gun law
§ 1 (1) This law regulates the handling of guns or ammunition taking into account the interests of public safety and order
and the decision of 02.27.2019 on the injunction of the plaintiff does not show that security is a legal right, but only a concern or interest.
The verdict of the BVerfG 69, 315 - Brokdorf defines security as the protection of the central legal rights to life, health, property, etc.
Accordingly, the term "public safety" covers the protection of essential legal rights such as life, health, freedom, honor, property and property of the individual, and the integrity of the legal system and public institutions, assuming, as a general rule, a threat to public security if a punishable violation of these protected rights threatens. "Public order" refers to the totality of the unwritten rules, the observance of which, according to prevailing social and ethical views, is regarded as an indispensable prerequisite for an orderly human coexistence within a certain area.
However, these definitions alone do not guarantee a constitutional application of the law. Significant for the constitutional assessment are two limitations, which are laid down in the law itself and which mean that prohibitions and dissolutions can essentially be considered only for the protection of basic legal rights, while a mere threat to public order in general will not suffice. (BVerfGE 69, 315 - Brokdorf Rn. 78)
The protection scope
Personal protection scope
Cases A and B: The applicant has the fundamental right to security.
Case C: The plaintiff has the right to general freedom of action under GG Art. 2 para. 1
Case A: The right to security is protected by the constitution in conjunction with human rights. The law assures the plaintiff that he should be able to ward off an attack on his physical integrity without restriction of the means.
Case B: The right to security is protected by the constitution. The law assures the plaintiff that he should be able to ward off an attack on his physical integrity with restrictions of the means.
Case C: Article 2 (1) assures the plaintiff of the general freedom of action as long as the rights of others are not affected.
Interference with the protected scope
Case A and B: The Arms Act restricts self-defense by excluding defenses. The firearm is the only meaningful and decent means of self-defense. The equipment of the police proves that a milder means of defense against dangers is not possible, otherwise this means would have to be used by the police for security reasons.
Case C: The gun law limits the general freedom of action.
Constitutional justification for the intervention (= barrier)
Fundamental rights with simple legal reservation
Case A, B and C: There is no simple reservation of law.
Fundamental rights with qualified legal reservation
Case A and B: There is no qualified legal reserve.
Case C: Reservation in the constitution, Art. 2 (1)
Everyone has the right to the free development of his personality, as far as he does not violate the rights of others and does not violate the constitutional order or moral law.
But against what other right, against which norm of the constitutional order (set of norms) or which moral law is violated, if a firearm is possessed, led and used for the self-defense?
Case A: There are no barriers, on the contrary, human rights are inviolable and inalienable.
The protection after the violation of the fundamental right to life would come too late. Therefore protection is obvious if the violation of fundamental rights is immediate and irreparable or the violation of fundamental rights depends is random.
The intervention in the physical integrity but also from mentioned Reasons in its protection therefore represents an interference with human dignity.
Case B: A restriction of the means of defense would be formally constitutional, if the protection of life would collide with one other legal interests. But the gun law tries to protect the same legal right (right to life, physical integrity etc.). In addition, it would still be difficult to prioritize another legal right higher than the right to life.
Case B: A restriction of the means of defense would be constitutional, if the protection of the life would collide with another legal right. The gun law tries to protect the same legal right (right to life, physical integrity).
If one right of a human collides with the same right of another human being, it is not possible to weigh it up but to count it. According to the object formula, man must not be degraded to a countable item of governmental actions, as this violates his human dignity. The state states with the gun law that the security of the majority is more important than the security of the individual, that is a counting. The purpose of public safety - the security of the majority - becomes with (the means) the expropriation of the individual security he buys. The safety of others should be improved by renouncing one's own safety. The law requires a self-sacrificing selflessness of the individual. Because the others can own legal but illegally applicable guns and even illegal guns, the intention is unattainable.
Case C: There is no specific conflicting legal interests, since security itself is not a legal interest, but merely the protection of a central legal interest. However, the protection of a legal property justifies a concrete intervention in a concrete legal good of general freedom of action only if that legal property is immediately endangered. If mere possession of guns would directly endanger public safety, there would be no exceptions for firearms ownership.
b) A constitutional review in constitutional interpretation is also subject to the provision of § 15 VersG, according to which the competent authority may make the assembly dependent on certain conditions or prohibit or dissolve "if, according to the circumstances recognizable at the time of the order, public security or order is immediately jeopardized when performing the demonstration". (BVerfGE 69, 315 - Brokdorf Rn. 77)
Limits of limits
Formal constitutionality of the restrictive law. Competence, procedure, form
The representation of the people must be elected in the provinces according to GG Art. 28 para. 1 and in the Federation pursuant to GG Art. 38 para. 1 in general, direct, free, equal and secret ballot. The deputies should be subject only to their conscience.
The elections were not free at the latest since the introduction of the list candidates, since the preselection of the candidates by an intermediate instance (parties) comes about.
There are also unfree and indirectly elected MPs in the Bundestag.
The freedom of elections consists first of all in the fact that every voter can freely exercise his right to vote, ie without coercion or other inadmissible influence from outside. The right should protect the free election. Whether, moreover, freedom of elections demands even more today can be left open here. For at any rate, the concept of freedom of elections can not be used to derive any principles for the technical design of the exercise of the electoral law. The principle of free elections is therefore not affected by the introduction of rigid lists. It is not a question of more or less free election activity, but whether a proportional choice associated with elements of the majority vote is carried out with free or bound lists, but a question of the more detailed design of the electoral exercise. ( BVerfGE 7, 63 Rn 19 - Listenwahl)
The judges of the constitutional court have never had to make holiday on Lake Balaton, these holiday destinations were on Honecker's rigid lists of allowed vacation destinations of the GDR citizens and could be selected without coercion and other inadmissible influence from the outside by the citizens of the GDR. The holiday on the knee-flat Lake Balaton was also safer than in the shallows of Ballermann.
For the court, the candidate lists are only a technical design of the elections. That being preselected onto the candidate list affects the loyalty of the deputies to the party, misunderstands or obscures the court.
The proof of the lack of freedom of the elections and the associated loyalty of the deputies to the party are secret votings in the Bundestag, eg election of the Chancellor. Secret votings in the Bundestag should protect or strengthen the free conscience of the deputies before the pressure of the party. The GG demands, however, that the deputies should always be subject to their conscience and always to 100%. So if the elections to the Bundestag are free and do not manifest the loyalty of the deputies to the party, what is the reason for the secret votings in the Bundestag?
Technical design of the elections
Will the Bundeswehr, as the technical design of national defense, be given into the hands of a potential enemy?
Even a technical design belongs in the hands of the sovereign and not in the hands of the potential enemy. The preselection of the deputy candidates in the form of the candidates lists belongs to the hand of the sovereign.
The immediacy of the election is violated by list voting. The directness required by the constitution is violated. GG Art. 38 does not allow any exceptions that not directly elected representatives in the Bundestag act.
The principle of immediacy, as was already recognized under the Weimar Constitution, can not be restricted, even in its wording, to prohibiting only indirect election by electors. It also excludes any electoral procedure in which, between voters and electoral candidates, an electoral body joins the electoral process after the electoral process and, at its discretion, elects the deputies, thereby depriving the individual electorate of the power of self-determination of the future deputies by voting. (BVerfGE 7, 63 Rn 16 - Listenwahl)
The idea of electors, as in the US electoral system, is therefore not the sole reason for the electoral directness.
There can not be an instance which, at its discretion, selects the deputies.
The court ignores or disguises that the election can be manipulated both before and after the election.
There follows the proof that manipulating the election by lists before the election is more harmful than post-election manipulation.
Given 4 electors: Hitler, Stalin, Jesus and Mother Theresa.
Given good and bad candidates
- Manipulation before the election: Only Hitler and Stalin are put on the list, the people vote. Hitler or Stalin vote for deputies.
- Manipulation after the election: The people vote. Most of the votes are given to Jesus or Mother Theresa. Jesus or Mother Theresa, as electors, vote for deputies.
Does te court still believe that a manipulation before the election is only a technical design of the elections?
The verdict bears witness to the self-importance and presumed superiority of the German electoral system and German morality, and to the intelligence of the judges, of a cynicism of monstrous proportions.
The fact is that an instance (parties) intervenes before the elections and restricts the elections and manipulates it.
Consequences of the non-free and indirect elections for the gun law
According to GG Art. 77 (1), federal laws are passed by the Bundestag. The Bundestag is elected in accordance with GG Art. 38 para. 1 in a free and direct election. From the fact that such a election has not taken place since the rigid list was chosen, it follows that no legitimate Bundestag exists (has) and it follows that the participants present in the vote of the gun law lacked the formal decision-making competence.
Material constitutionality of the restrictive law
Essential nature guarantee (article 19 II GG)
Case A: not applicable, not restrictable at all.
Case B: Infringement, as the success of defending his physical integrity is left to a random principle. For a person who is not classified as endangered, it is absolutely forbidden under the gun law to defend himself with a firearm, as it may not be used. A self-defense capability is not given if it is clear from the outset that the defense depends on chance and probably ineffective. The defense is ineffective if too a weak defense tool is chosen. To determine which means is just enough, the future must be predictable. Therefore, only the attitude is admissible that only one firearm is sufficient for the defense.
Case C: not constitutional, as no legal interest.
Prohibition of burdensome individual case law (Art. 19 I 1 GG)
Quotation (Article 19 I 2 GG)
Case A, B and C: The gun law violates the quotation principle.
Principle of certainty
The protection of public order does not ensure constitutional application of the law.
The protection of public security does not ensure constitutional application of the law.
However, these definitions alone do not guarantee a constitutional application of the law. Significant for the constitutional assessment are two limitations, which are laid down in the law itself and which mean that prohibitions and dissolutions can essentially be considered only for the protection of basic legal interests, while a mere threat to public order in general will not suffice. (BVerfGE 69, 315 - Brokdorf Rn. 79)
The scale of protection and the value (on the scale) of the protection is not defined. Only measures consisting of the individual paragraphs of the law are defined in order to reach an undefined value on an undefined scale. Of course, the value of the supposedly poor initial state and the desired state is missing.
Gun law § 8 pushes indeterminacy to the extreme. There are "particularly recognizable personal interests" were sufficient for the proof of a need.
Gun law § 19, To lead firearms, someone must be "more at risk than the general public by attacks on life or limb".
§ 14, "[...] Within six months as a rule no more than two firearms may be acquired."
Here the condition or requirement for the deviation from the rule is missing.
Parliamentary reservation (essentiality theory)
Significant decisions must be taken by the legislature and not left to the administration. The essential question to what extent a person is endangered (§ 19), in order to obtain a firearm license, decides the administration without defaults of the legislator. About the need (§ 8) also decides the administration according to discretion.
If the law concerns the central legal interests, the requirements for the materiality of the law are higher.
Today, it is settled case-law that the legislature is obliged - in isolation from the characteristic of "interference" - in fundamental normative areas, especially in the area of the exercise of fundamental rights, insofar as this state regulation is accessible, to make all significant decisions (BVerfGE 49, 89 - Kalkar I, Rn. 76)
Proportionality principle in the form of excess prohibition
The purpose of a law is the final desired cause of an action, the law.
The legislation is bound by the constitutional order, executive power and jurisdiction are bound by law. The bond is also in the fact that purposes and means are defined. (Pieroth / Schlink Grundrechte Staatsrecht II)
The aim of the gun law is feigned with the mention of the term "purpose" in § 1.
The gun law "regulates the handling of guns or ammunition" . The gun law therefore regulates an action and does not pursue a purpose in this phrase.
If the regulation of the handling as purpose is to be sold, then the law itself is the aim of the law, because the regulation is the law itself, ie the action that should lead to the goal.
It also says: "taking into account the concerns of public safety and order." Here, no purpose is mentioned, but a concern that should only be considered.
A proof for the concealment tactics of the legislator in the objective are various laws with defined purposes. Wherever a suitable tool exists and the constitutionality can not be doubted, the legislature also formulates a clear aim of the law. Where it is impossible to reach a purpose and where there is no suitable means to reach the purpose, or where the purpose may not be given to the people, no purpose is mentioned.
Laws with a defined purpose
The purpose of this law is
- to terminate the use of nuclear energy for the commercial production of electricity and ensure the orderly operation by the time of termination,
- to protect life, health and property from the dangers of nuclear energy and the harmful effects of ionizing radiation and to compensate for damage caused by nuclear or ionizing radiation;
- to prevent the internal or external security of the Federal Republic of Germany being jeopardized by the application or release of nuclear energy or ionizing radiation,
- to ensure the fulfillment of international obligations of the Federal Republic of Germany in the field of nuclear energy and radiation protection .
Law serves to protect against attacks on the safety of civil aviation, in particular from hijacking, sabotage and terrorist attacks.
The purpose of this law is to regulate the circulation of medical devices, thereby ensuring the safety, suitability and performance of medical devices as well as the health and protection of patients, users and third parties.
the purpose of this Act is to ensure the safety of trade in medicines, in particular the quality, efficacy and safety of medicines, in the interests of the proper supply of medicines to man and animals, in accordance with the provisions set out below .
(1) The purpose of this Act is to protect people, animals and plants, the soil, water, the atmosphere, and cultural and other material interests from harmful environmental effects and to prevent the occurrence of harmful environmental effects.
1. to ensure the safety and health of workers in the Federal Republic of Germany and in the exclusive economic zone in the organization of working time and to improve the framework conditions for flexible working hours and
2. to protect Sunday and nationally recognized holidays as days of rest and mental health work .
The above laws protect safety. The pattern recognition of a 5-year-old would conclude that the purpose of the gun law should be as follows:
The purpose of this law is to protect the lives of people from criminals with firearms.
In contrast, the gun law regulates the handling of guns in consideration of security.
In which direction and for which interest groups is security regulated?
Dividing the groups into the public, the individual and the state apparatus reveals the unconstitutionality because the individual is the least protected.
The imaginative creation of the decision on the constitutional complaint of a shooting sports association gets a bad taste, if one is aware of the nature of the legal disorder, see Formal constitutionality of the restrictive law.
The use of guns primarily serves to protect the legal system, for the defense of which by force of arms the state has a monopoly. ( BVerfG 539, 03 - Rn 14 - Schießsportverband)
Thus the BVerfG exposes the true purpose of the law as protection of the state apparatus and its injustice order from its own people and sovereign.
The authors of the gun law have spent effort to disguise the purpose of the law. They have thus themselves undermined the public security in the form of the integrity of the legal system.
Does disarming work for more security?
If you believe our Führer Adolf Hitler, then yes.
The gun law protects people in the same way that Hitler protected the Jews by explicitly banning their weapons. By the mention of the Jews In §3, paragraph 5, Hitler emphasized the importance of the protection of Jews.
§3 Abs. 5 Gun Law (1938)
The permit may not be granted if the applicant and persons envisaged for the technical management of his business or one of to them is Jew.
Since it would be politically incorrect today to favor a group, the legislature provide the special protection to all of us.
Questions to the court:
- What is the purpose of the gun law?
- Who should protect whom by what means against which dangers?
- If the handling of guns should be the desirable result (purpose), what are the actions?
- And why "does" the law "regulate" the purpose / purpose itself and not the actions that lead to the goal?
- If safety is to be the purpose, why should it ONLY be considered and why has not it been directly defined as a purpose?
In the case that security is the purpose of the law:
Case A,B and C: The gun law does not define a constitutional purpose. The legal interests themselves are worth protecting, but not the protection of legal interests. With the laws (StGb etc.) alone, which protect the life, health, property etc. the duty of the state for the protection of the legal interests is exhausted. The justification for further interventions requires an immediate threat to the central legal interests.
Suitability of the (constitutional) means
Case A, B and C: If seconds decide, the police are minutes away. The protection of the central legal interests will be reduced contrary to the objective if the victim is deprived of the means of protection. The means of criminals, however, can not be restricted by law. The potential criminal has the opportunity to get guns in a legal or illegal way.
Necessity of the means
Case A, B and C: A milder and more effective way to increase security is to arm citizens. It is milder because no rights are restricted and more effective because protection is guaranteed with the least possible delay.
Adequacy of the means / proportionality ie S. / Proportionality
Legislature tries to reduce the likelihood of killings by banning people's self-protection with the firearm.
The thesis behind it is:
The likelihood of killings increases solely by the number of guns used for self-defense purposes.
The probability does not increase, however, if the gun numbers used for sports and other allowed purposes increase.
Which justification for owning a gun is more important, self-defense or gun collection?
Case A, B and C: The greatest possible realization of fundamental rights is achieved with the abolition of the self-defense and emergency aid prohibition, ie the gun law. Every citizen will have more freedom of action and will have the opportunity to take care of their own safety.
Last update May 26. 2019